Lerner read a statement to the Committee on May 22, while under oath, in which she appealed to the Fifth Amendment. She did make a few responses following that statement to Chairman Darrell Issa (R-CA). Republicans, including South Carolina's Trey Gowdy, said that her actions waived her right to refuse to testify.

Issa then adjourned the hearing for recess in order to preserve their ability to subpoena Lerner in the future.

However, the following day, May 23, Issa concluded that her Fifth Amendment assertion was invalid.

While I question the validity of a government employee invoking the Fifth Amendment when there is no criminal trial going on, I must ask why the Committee didn't nullify that claim up front. The people of the United States are Ms. Lerner's employer and as such, we have elected representatives that have the authority to question those employees and they don't have the right to just "clam up."

Rep. John Mica (R-FL) said that it is the constitutional duty of those on the committee to conduct oversight, but that duty was being "thwarted by a government employee."

"Lois Lerner is, in fact, the poster child for thumbing her nose – a federal bureaucrat – thumbing her nose at Congress," Mica said. "I'm telling you, I've absolutely had it with what we've seen."

"It's not in the Constitution that there is a fourth branch that can tell us to go to hell," he added.

Socialist Democrat Elijah Cummings (D-MD) said he wanted to hear Lerner's testimony. "I agree that she has information that is relevant to the committee's investigation," he said. "But we must respect the constitutional rights of every witness who comes before the committee. And whatever your interpretation of the law is in this instance, we should all agree that this is not a responsible record to put forward because it undermines the credibility of this committee and the legitimacy of the resolution itself."

The Republicans voted down a Democrat amendment which would have resulted in them holding a hearing prior to voting on the resolution.

While Democrats on the committee said that was "trampling on the rights of an American citizen," I wonder why they aren't just as concerned about Ms. Lerner and her cronies "trampling on the rights" of millions of American citizens.

"I don't need law professors to come for a second hearing and read me the case law," Rep. Trey Gowdy said. "There's not going to be one additional fact uncovered at a second hearing. You don't get to tell your side of the story and then avoid the very process that we have in this system for eliciting the truth."

Rep. Gerald Connolly (D-VA) disagrees. "Case law is very clear that the fact that she made a statement does not somehow constitute a waiver. The record is quite clear (Lerner) intended absolutely from the beginning to invoke her Fifth Amendment and protect herself as an American citizen is entitled to do."

Carol Platt Liebau points out how Congress would enforce sanctions against her:

It's not easy. As this document from CRS points out, there are three different ways non-compliance with subpoenas can be enforced. First, there's the argument that Congress itself has "inherent power" to detain and/or imprison someone in contempt. Clearly, that's not going to happen -- and given that Lerner is a member of the executive branch, it would probably provoke a constitutional (separation of powers) crisis if it did.

Second, Congress can certify a contempt citation to the DOJ for criminal prosecution of the person in contempt. Does anyone think that's going anywhere in Eric Holder's department? Yup -- didn't think so.

Third, Congress may seek redress from a federal court, asking for a declaratory judgment that the person is legally obligated to testify. There are two problems, however, with this approach. First, it would take a long time (a fact that plays right into Democrat hands). Second, it's far from clear that the court would agree with congressional assertions that Lerner waived her Fifth Amendment rights.

There's a Supreme Court case from 1955, Emspak v. United States, that's pretty much on point. There, a union leader appeared before the House Committee on Un-American Activities. He didn't even explicitly assert his Fifth Amendment rights -- as Lerner did -- and actually answered a question that, in effect, stated that he was invoking his privileges not because he was necessarily subject to criminal prosecution, but because he believed the committee had no right to "pry into my associations" (analogous to Lerner's assertion of her innocence). The Emspak Court wrote:

Apparently conceding that petitioner . . . intended to invoke the privilege, the Government points out "the probability" that his references to the Fifth Amendment were likewise deliberatedly phrased in muffled terms "to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise." On this basis, the Government contends that petitioner's plea was not adequate. The answer to this contention is threefold. First, an objection that is sufficiently clear to reveal a probable intention to invoke the privilege cannot be ignored merely because it is not phrased in an orthodox manner. . . .

Indeed, the Court held that in order to be deprived of the Fifth's protection, a witness must "intelligently and unequally waive[] any objection based on the Self-Incrimination Clause" or else "refuse[] a committee request to state whether he relies on the Self-Incrimination Clause." Lerner did neither.

Lerner needs to talk. Just because her employer is the Federal government doesn't mean she should not be accountable. If that is the way she wants to be about it, perhaps she should simply be fired, since she is getting a paid leave of $3,557.69 per week, and then prosecuted. She could plead the Fifth in court.

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